Date: 2022-03-17

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended.

Between:

Julian Whiting Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Julian Whiting, Self-represented

For the Respondent: Stella Velocci, Agent

Heard by teleconference: February 17, 2022

REASONS FOR DECISION AND ORDER

A. Overview

1A teleconference hearing was held on February 17, 2022 to consider the appellant’s appeal of the impoundment of his 2014 Honda (the “vehicle”) on January 7, 2022 for 45 days.

2The appellant submits that the vehicle was stolen by his ex-girlfriend at the time it was detained to be impounded. He also submits that the impoundment will result in exceptional hardship because he needs the vehicle for his work and the payment of the impound fees to obtain the vehicle at the end of the impoundment period will cause him financial hardship.

PRELIMINARY MATTERS

Respondents Submissions

3The Tribunals Case Conference Report and Order (CCRO)required the respondent to provide its submissions to the appellant by February 15, 2022. The respondent provided its submissions to the appellant and to the Tribunal on February 17, 2022, shortly before the hearing.

4As a result, the Tribunal asked the appellant if he would like to have a half hour break to read the respondent’s submissions or alternatively if he would like a short adjournment of a few days in order to review the respondent’s submissions. The appellant requested a one half hour break. The start of the evidence at the hearing was deferred by one half hour to accommodate the appellant’s request.

Appellants Additional Ground of Appeal

5The appellant indicated that although the Tribunal’s CCRO identifies the issue to be decided at the hearing as whether the appellant’s vehicle can be considered to have been stolen at the time it was being driven by the suspended driver, the appellant said he wanted to add as an additional ground exceptional hardship.

6The respondent’s representative indicated no additional time was needed to prepare for this additional ground of appeal.

7The appellant’s request to add this additional ground of appeal was granted and the hearing proceeded on this basis.

B. ISSUES:

8The issues to be determined are:

a. Was the appellant’s vehicle stolen at the time it was detained in order to be impounded?

b. Will the impoundment result in exceptional hardship?

C. RESULT:

9I find that the appellant’s evidence fails to support a finding that the vehicle was stolen at the time of impoundment, or that the impoundment results in exceptional hardship.

D. LAW AND ANALYSIS:

10The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

11An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (a), that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded and (d), that the impoundment will result in exceptional hardship.

Was the appellant’s vehicle stolen at the time it was impounded?

12I find the appellant’s vehicle was not stolen at the time it was impounded. The burden is on the appellant to establish that his vehicle was stolen on a balance of probabilities and he has not done so.

13The meaning of stolen is not defined in the HTA. A vehicle is stolen if it is taken without the owner’s consent. That consent may be express or implied.

14In Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149, by Linda P. Lamoureux, Executive Chair, found at paragraph 16 the meaning of the word “stolen”, in the context of the HTA, to be:

“I also find that the Tribunal erred in finding that “stolen” within the meaning of s. 50.2 (3) (a) of the HTA amounts to use of property contrary to the owner’s instructions: such a definition broadens the meaning of “stolen” beyond the ordinary meaning of the term and what the language of the legislation can reasonably support. This was a significant error of law.”

15I accept that “stolen” in s. 50.2(3)(a) of the HTA does not mean use of the vehicle contrary to the appellant’s instructions.

16The appellant testified that he is employed in the construction industry as a tradesperson. On January 3, 2022 he was working at a construction site in another municipality and scheduled to return to his home some days later. He had been driven to the construction site by another person. The appellant was surprised to learn that on January 7, 2022 his vehicle had been impounded because it had been taken from the parking lot of his apartment building by his ex-girlfriend without his permission and she was driving it when it was impounded. He did not know his ex-girlfriend did not have a valid licence. The appellant said the police were executing a warrant on him and that is how they came to impound his vehicle.

17The appellant said he had not been in a relationship with his ex-girlfriend since approximately September, 2021. The appellant also testified that he has a restraining order on his ex-girlfriend and a no contact order is in place. The appellant did not produce the restraining or no contact order or file it at the hearing.

18The appellant testified that the vehicle was taken without his permission but admitted that he did not have any criminal charges laid against her. The appellant testified that he told the police officer he wanted to have his ex-girlfriend charged but the officer was obstinate and no charges were laid.

19The appellant admitted in cross-examination that when they were together, he knew his ex-girlfriend drove his vehicle because sometimes the seat was changed, his belongings were moved. The appellant testified that when they were together, his ex-girlfriend “would take his car all the time without his permission”. He assumed she had a key to his vehicle but he told her not to drive it. After he was no longer together with his ex-girlfriend, the appellant admitted that he did not ask her to return the key to his vehicle.

20I find that the appellant’s vehicle was not stolen. The appellant produced no evidence that he reported it to the police as stolen. The appellant admitted that no charges were laid. The appellant produced no documents to show that he asked the police to charge his ex-girlfriend.

21Also, the appellant did not ask his ex-girlfriend to give him her key to his vehicle even though he knew she drove it frequently when they were together and that she had her own key to his vehicle. Although the appellant testified that his ex-girlfriend drove his vehicle January 7, 2022 without his permission, she had done this frequently when they were together, and yet he took no steps to protect his vehicle from her use after they were no longer together. In these circumstances, I find that the appellant impliedly consented to his ex-girlfriend continuing to use his vehicle without his permission as she had done when they were together. Considering the totality of the evidence, I find the vehicle was not stolen.

Will the impoundment result in exceptional hardship?

22I find that the impoundment will not result in exceptional hardship because the appellant has alternatives to the impounded vehicle.

23Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

24If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

25Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

26I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

27Although the respondent’s documents show the appellant as the owner of two other vehicles, he testified that they are not in use. One is in storage because of transmission problems and the other vehicle was scrapped some two years ago. I accept the appellants testimony on this point.

28However, the appellant testified that he lives in a municipality where he has access to public transit. Although the appellant spoke of his inability to use public transit to go to work because of the need to take his tools with him to construction sites not served by public transit, inconvenience of taking public transit is not a factor which the Tribunal can take into consideration.

29Because the appellant has public transit available to him as an alternative to the impounded vehicle, I am unable to consider the appellant’s submissions related to financial or economic loss. The appellant’s preference to drive his own vehicle as opposed to taking public transit is a matter of convenience which I am not permitted to consider in determining whether there is exceptional hardship.

30I find that the appellant has an alternative to the impounded vehicle. Therefore, I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

31The appellant also testified that he works in the construction trade and requires access to his tools for his employment. The appellant testified that his tools were in the vehicle when it was impounded and this has prevented him from working since the date of impoundment. Although the appellant said he did not know this, the appellants tools were not impounded, only his vehicle was impounded and he could have obtained access to the contents of his vehicle had he requested this from the impoundment facility. The failure to request access to his tools is what has prevented him from working since the impoundment, not the impoundment of his vehicle.

32Further, the appellant was working on a job site in another municipality for several days prior to and at the time his vehicle was impounded, tending to indicate that he was able to work without access to the contents of his vehicle.

POST CLOSING SUBMISSIONS

33On February 17, 2022, after the hearing had finished, the appellant sent to the Tribunal two emails containing:

a. a copy of a definition of “due diligence” which the appellant says is the definition in “blacks law 11th Ed.”

b. a copy of what the appellant says is s. 7 of the “Charter of Rights and freedoms” but which appears to be an extract from a textbook.

34Although these two documents do not constitute evidence at the hearing, I have considered them and find that they are not relevant or persuasive to the issues I have to decide at this hearing. The appellant did not raise due diligence as a ground of appeal and did not raise any Charter issue in his notice of appeal, at the case conference, during or after the hearing.

ORDER:

35Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.